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Following an investigation indicating that Missouri may have executed an innocent man for the 1980 murder of Quintin Moss, New York Times columnist Bob Herbert wrote that the case was filled with problems that are typical of wrongful convictions in capital cases. Herbert stated that St. Louis circuit attorney Jennifer Joyce has taken "the extraordinary step of officially reopening a murder investigation after the defendant was executed," adding that it is difficult to prove that an innocent person has been executed because official investigations cease once the death penalty has been carried out. Herbert wrote:

If Larry Griffin were being tried today for the murder of Quintin Moss, he would almost certainly be acquitted. The evidence is overwhelming that he did not kill Mr. Moss.

But Mr. Griffin is not being tried today. He has already been executed for the murder.

A year-long investigation by the NAACP Legal Defense and Educational Fund has uncovered evidence that Larry Griffin may have been innocent of the crime for which he was executed by the state of Missouri on June 21, 1995. Griffin maintained his innocence until his death, and investigators say his case is the strongest demonstration yet of an execution of an innocent man. The report notes that a man injured in the same drive-by shooting that claimed the life of Quintin Moss says Griffin was not involved in the crime, and the first police officer on the scene has given a new account that undermines the trial testimony of the only witness who identified Griffin as the murderer. Based on its findings, the NAACP has supplied the prosecution with the names of three men it suspects committed the crime, and all three of the suspects are currently in jail for other murders. Prosecutor Jennifer Joyce said she has reopened the investigation and will conduct a comprehensive review of the case over the next few months. "There is no real doubt that we have an innocent person. If we could go to trial on this case, if there was a forum where we could take this to trial, we would win hands down," stated University of Michigan law professor Samuel Gross, who supervised the investigation into Griffin's case.

The U.S. Supreme Court granted a last minute stay for Robin Lovitt, who was scheduled for execution at 9 PM on Monday (July 11) in Virginia. The Court did not give a reason for the stay, but Lovitt stated that he would have been able to show his innocence if state officials had not destroyed DNA evidence from his case after his trial. (See item below posted July 8). (Associated Press, July 11, 2005). See also Innocence.

A bill proposed by Rep. Daniel Lungren of California and Sen. Jon Kyl of Arizona would strip the federal courts of much of their power to decide whether death row inmates have been given a fair trial and could result in the execution of innocent defendants. The bill is entitled the Streamlined Procedures Act of 2005. The Washington Post editorialized about the measure:

Stop This Bill
Sunday, July 10, 2005; Page B06

CONGRESS HAS a novel response to the rash of prisoners over the past few years who have been exonerated of capital crimes after being tried and convicted: Keep similar cases out of court. Both chambers of the national legislature are quietly moving a particularly ugly piece of legislation designed to gut the legal means by which prisoners prove their innocence.

Habeas corpus is the age-old legal process by which federal courts review the legality of detentions. In the modern era, it has been the pivotal vehicle through which those on death row or serving long sentences in prison can challenge their state-court convictions. Congress in 1996 rolled back habeas review considerably; federal courts have similarly shown greater deference -- often too much deference -- to flawed state proceedings. But the so-called Streamlined Procedures Act of 2005 takes the evisceration of habeas review, particularly in capital cases, to a whole new level. It should not become law.

Robin Lovitt is scheduled for execution on July 11 in Virginia despite doubts about his guilt and the state's weak and circumstantial case against him. Lovitt's attorneys maintain that DNA testing of evidence in his case would prove that he is not guilty of the 1998 murder of Clayton Dicks, but the tests are not possible because a court clerk mistakenly destroyed the evidence. Columnist Margaret Edds of the The Virginian-Pilot recently wrote about the upcoming execution and the doubts that remain:

The scheduled execution of Robin Lovitt on July 11 spurs the latest dust-up in the state’s intensifying scrutiny of capital punishment.

At issue is whether it’s proper to execute a man, one who proclaims his innocence, even though a clerk mistakenly destroyed evidence in the case.

The U.S. Supreme Court has agreed to hear a capital case challenging the standard of proof needed for claims of innocence based on new evidence. The Justices will consider an appeal filed by Paul House, a Tennessee death row inmate who says new DNA evidence proves he was wrongfully convicted. In 1993 in Herrera v. Collins, a 5-member majority of the Court said a claim of innocence based on new evidence alone is generally not enough to merit a new hearing in federal court. However, in 1995 in Schlup v. Delo, the Court ruled that a convicted murderer who had other constitutional claims in addition to an innocence claim could get a new hearing if he could show that his new evidence makes it probable that "no reasonable juror would have found him guilty beyond a reasonable doubt." Last year in House’s case, the U.S. Court of Appeals for the Sixth Circuit voted 8 to 7 that House's evidence did not meet this standard. Six of the dissenters believed his new evidence was strong enough to show his innocence. The issue before the Supreme Court is what standard should be used by federal courts to evaluate claims of innocence on the basis of newly discovered evidence. The case is House v. Bell, No. 04-8990.

After an audit of Virginia's Division of Forensic Science resulted in criticism of the crime laboratory's procedures in testing DNA evidence, the state announced that it will now review the lab's findings in 160 cases, including approximately 24 death penalty cases that hung on DNA evidence. Robert J. Humphreys, a Virginia Court of Appeals judge, is leading the review effort to examine cases that date from 1994. This marks the first time Virginia has volunteered to revisit findings in the cases of executed felons on a large scale.

In an earlier lab audit that prompted this most recent review, the American Society of Laboratory Directors criticized the crime lab's role in the case of death row exoneree Earl Washington, Jr. The audit concluded that a chief lab scientist failed to follow proper procedure when testing a piece of evidence in Washington's case. The report stated that the analysis of this evidence was wrong and that internal review of the testing failed to properly identify the errors made by the scientist. Washington spent 17 years on Virginia's death row before DNA evidence confirmed his innocence and led to his pardon in 2000. Experts say that the review led by Humphrey's team of six national forensics experts will determine whether Washington's case was an isolated incident or an example of long-standing problems within the lab. The review team will not test or retest DNA evidence, but will determine whether scientists who handled the evidence followed proper procedures. Their work will take approximately eight weeks to complete.

David B. Albo, a member of the Virginia House Courts of Justice Committee and co-chairman of the Virginia State Crime Commission noted, "You need to have impeccable credentials to go into court. If they can't show that tests were done properly, that hurts prosecuting crimes."

In an editorial highlighting public support for the sentencing option of life without parole in death penalty cases and the need to take steps to protect against executing innocent people, USA Today recently stated that life without the possibility of parole is a "fitting replacement" for the death penalty. The editorial praised the historic enactment of a life without the possibility of parole statute in Texas and other recent activities around the nation that seek to address problems with capital punishment. It noted:

For the past half century, the nation has
been locked — deadlocked might be a better word — in a bitter debate
over the death penalty. But what if there is a middle ground?

With
little fanfare, a compromise has been gaining favor more than a decade,
drawing support as DNA evidence has exonerated inmates on death row.
Last week, it reached a milestone. Texas, site of one in three
executions, gave juries the option to sentence defendants in capital
cases to life without parole rather than death.

All but one
death-penalty state, New Mexico, now offers that choice, a marked
change from the era when life sentences were a meaningless illusion.
But why stop at making life without parole just an optional alternative
to execution? It is a fitting replacement, assuring severe punishment
for the worst of crimes but with a safety valve to protect those
falsely accused or wrongly sentenced.

Evidence of the need pours in weekly now.

Five
times in the past seven months, the Supreme Court has had to rein in
state courts that mishandled death penalty cases. On Monday, the court
ordered a new sentencing trial in a Pennsylvania case involving shoddy
work by the lawyer for an accused murderer.

Last week, the court
sent back cases from Texas and California that reeked of racial
discrimination in jury selection. Earlier, the court ruled against
Texas (again) and Missouri (twice) in cases of excluding relevant
evidence, making defendants appear in shackles and executing juveniles.

Just last week at the state level:

•An
Oklahoma appeals court ordered a new trial for a man sentenced to death
in a 1982 murder on the basis of testimony from a police chemist who
has since been fired for poor and unreliable lab work.

•An
Illinois man jailed for eight months and facing the death penalty in
his daughter's death was released when a long-overdue DNA test finally
came back — negative.

•A former North Carolina judge urged the state Legislature to impose a two-year moratorium on executions.

Against this backdrop, the rate of executions has dropped 40% from its onetime high.

Since
the death penalty was reinstated in 1976, the Supreme Court has tried
to make clear that it is to be applied carefully and evenhandedly.
Nevertheless, cases of incompetent lawyering, suppression of evidence,
local prejudice and other affronts to justice keep appearing.

The
result is evident in the numbers who narrowly escaped execution: While
972 people have been put to death since the 1970s, at least 119 have
been taken off death row because of evidence they were wrongly
convicted or sentenced.

According to a Gallup Poll in May, 74% of
the public supports the death penalty, but backing for capital
punishment drops to 56% when respondents are given the alternative of
life without parole. Even in Texas, a Scripps-Howard poll last October
found that while 75% supported the death penalty, 78% favored the
option of life without parole.

Already, life without the death
penalty is the norm in a growing number of states. In addition to the
12 that don't allow it, five others have had no executions in more than
30 years; six have used it only once in that time.

Abolishing the
death penalty and using life without parole instead can't fix all the
injustices exposed in courts across the nation. But at least no one
would be executed as a result. (USA Today, June 22, 2005)

The Oklahoma Court of Criminal Appeals has reversed the conviction and death sentence of Curtis Edward McCarty because the state's case was largely based on the testimony of a police chemist who has since been fired for shoddy and unreliable lab work. The court ordered a new trial for McCarty, who has been on death row more than two decades for a 1982 murder. At issue is the expert testimony of former Oklahoma City police chemist Joyce Gilchrist during McCarty's capital trial. Gilchrist had been with the police department for 21 years when she was fired in 2001 following investigations of her forensic work. Based on a hearing regarding the trial evidence, an Oklahoma County District Court concluded that Gilchrist either lost or destroyed critical evidence in McCarty's case.

A recent investigation led by a former Justice Department official reported that analysts at the Houston Crime Lab fabricated findings in at least four drug cases, including one in which a scientist failed to conduct testing before issuing conclusions to support police suspicions - an illegal practice known as "drylabbing." The report contains some of the most serious allegations made yet against the Houston Crime Lab and is the first to criticize the lab's largest division, controlled substances, which tests substances suspected of being drugs and performs about 75% of the Houston Police Department's forensics work. This is the fifth area of crime lab disciplines where errors have been exposed — including DNA, toxicology, ballistics and the blood-typing science of serology.

The investigation into the lab is being headed by Michael Bromwich, a former U.S. Justice Department official. He found that the "drylabbing" reports were issued by two analysts between 1998 and 2000. One of the analysts, who has since resigned, once fabricated conclusions that sent an innocent man to prison for four years for rape. In a later instance of misconduct, he used results from a colleague's testing in his own case file. The second analyst, who still works at the lab, identified tablets as a controlled substance without performing tests and later falsified data to support incorrect conclusions. In each of the four cases, the analysts' supervisors caught the misrepresentations before the evidence was introduced in court, but the two employees responsible for the "drylabbing" results were punished with no more than a four-day suspension.